Week 5

Question 1

Section 43 of the JDA, direction on ___________

Answer 1

prosecution not calling or questioning witness (Jones v Dunkel reasoning)

Question 1

TJ may only direct the jury on s 43 if satisfied the prosecution:
(1) was reasonably e______
(2) has not s__________

Answer 1

(1) expected to call or question the witness
(2) satisfactorily explained why it did not call the witness

Question 2

Under s 43 of the JDA, the TJ may inform the jury it may conclude that the witness would not ___________

Answer 2

have assisted the prosecution’s case

Question 3

If there was a good reason not to call a witness, the Crown may call for a (what type of direction)

Answer 3

Anti-speculation direction

Question 4

An anti-speculation direction guards against the jury instinctively using (what kind of reasoning)

Answer 4

Jones v Dunkel

Question 5

If the rule in Browne v Dunn is breached, the remedies are:
(1) _________, s 46
(2) a prohibition on leading _________ in breach of the rule, ss 135/137
(3) a direction may be given, which is ______

Answer 5

(1) recall the witness
(2) evidence
(3) rare

Question 6

A direction regarding Browne v Dunn may only be given where:
(1) leave to recall was not ________
(2) and the breach was ______

Answer 6

(1) practical
(2) significant

Question 7

A direction about a Browne v Dunn breach may be about:
(1) using the breach to assess the _______
(2) using the breach to infer recent _______ (very rare in criminal trials)

Answer 7

(1) weight of the evidence
(2) invention

Question 8

In MWJ v The Queen (2005) 222 ALR 436, there was inconsistency between the complainant and her mother. The HCA held that this was the ___________’s job to remedy if they wanted to.

Answer 8

prosecution’s job

Question 9

Section 38 is

Answer 9

Unfavourable witnesses

Question 10

Section 37 - rule about ______

Answer 10

leading questions

Question 11

Leading questions may be asked in XN/REXN if:
(1) The Court ________
(2) relates to a matter _______ to the witness’s evidence
(3) no objection is made by the other party and the other party is _____
(4) the matter is not ______
(5) expert witness and the question is for the purpose of obtaining their ______

Answer 11

(1) gives leave
(2) introductory
(3) represented
(4) in dispute
(5) opinion

Question 12

A leading question is (Dictionary):
(a) directly or indirectly __________
(b) assumes the existence of a fact, the existence of which is in dispute, and the existence of which the witness has not yet _______

Answer 12

(a) suggests a particular answer to the question
(b) given evidence before the question is asked

Question 13

Under s 38, a party with leave of the Ct, may XXN a witness if:
(1) evidence of the witness is ______, or
(2) the witness is not making a __________ to give evidence on matters they may reasonably ______________, or
(3) made a _______

Answer 13

(1) unfavourable
(2) genuine attempt / be supposed to have knowledge
(3) prior inconsistent statement

Question 14

Evidence is ‘unfavourable’ if it is:
(1) not _______

Answer 14

favourable

Question 15

“Unfavourable” does not mean “adverse” in the sense of _____

Answer 15

“hostile” (DPP v Garrett [2016] VSCA 31, [64]-[66]

Question 16

The TJ in considering whether to grant leave to XXN under s 38 may consider:
(1) whether the party gave ______ at the earliest opportunity of its intention to seek leave to XXN, and
(2) the matters and extent to which the witness has been or is likely to be questioned by another party

Answer 16

(1) notice

Question 17

Evidence will ordinarily be “unfavourable” if:
(1) it is i______________ with, or
(2) c__________

Answer 17

(1) inconsistent
(2) contrary

Question 18

In determining whether the evidence is unfavourable, is the TJ required to consider the whole of the evidence?

Answer 18

No (Garrett)

Question 19

Prior inconsistent statements made by an unfavourable witness may be admissible under which section to prove the facts contained in it?

Answer 19

Section 60

Question 20

The HCA case of Adam [2001] HCA 57 stands for the proposition that when XXN a witness under s 38(1)(c) (to put evidence of a PIS), that evidence can be tendered for ________

Answer 20

the truth of what was said in the prior inconsistent statement

Question 21

Sako’s evidence in Adam (HCA) was unfavourable because:
(1) in his interview with police, he spoke of what happened as if recollecting his own observations

but, on the voir dire, the general tenor of his evidence was that he had seen nothing of great moment and what he told police was _______

Answer 21

what he had been told by others

Question 22

XXN must occur after XN unless otherwise directed (s ____) and takes the form of leading questions (s _____)

Answer 22

s 28
s 42

Question 23

Improper questions not permitted by which section?

Answer 23

s 41

Question 24

Process for prior inconsistent statements is in which section?

Answer 24

s 43

Question 25

Credibility evidence is defined in which section?

Answer 25

s 101A

Question 26

The credibility rule is in which section?

Answer 26

s 102

Question 27

The credibility rule (s 102) is that “credibility evidence” is ____________

Answer 27

not admissible

Question 28

Credibility evidence is evidence that is (s 101A):
(1) relevant only to ______ OR
(2) relevant to credibility and some other purpose, but it is _____ admissible for that other purpose

Answer 28

(1) credibility
(2) not

Question 29

The major exceptions to the credibility rule in s 102 are in which sections:
(1) evidence adduced in XXN (ss ____ and ____)
(2) evidence in rebuttal of denials (s ____)
(3) evidence to re-establish credibility in REXN (s ____)
(4) evidence of persons with specialised knowledge (s ___)
(5) character of accused (s ____)

Answer 29

(1) ss 103 and 104
(2) s 106
(3) s 108
(4) s 108C
(5) s 110

Question 30

Under s 106, if a witness rejects a challenge to his or her credit, can the party challenging the witness call other evidence to attack the witness’s credit

Answer 30

Yes

Question 31

Section 41 of the JDA is the direction on the accused ________

Answer 31

not giving evidence or calling a witness

Question 32

Defence counsel may request a s 41 direction (JDA) that:
(1) it is for the ________ to prove that A is guilty BRD
(2) the accused is not required to give evidence/call witnesses and the jury should not s_____________ on what evidence might have been given
(3) the fact that A did not give evidence:
- is not evidence against A
- is not an admission
- is not able to be used to fill gaps in the pros case
- does not strengthen the _______

Answer 32

(1) prosecution
(2) speculate
(3) prosecution case

Question 33

Section 43 of the EA is about cross-examining witnesses about _________

Answer 33

prior inconsistent statements

Question 34

Evidence adduced by an accused to prove that he is generally or in a particular respect a person of good character is not subject to which rules:
1 ____________
2 ____________
3 ______& _____

Answer 34

1/ Hearsay
2/ Opinion
3/ Tendency and Coincidence

Question 35

If the accused has adduced good character evidence (and it has been admitted), if granted leave under s 112, the pros can XXN the accused to adduce evidence that the accused is NOT a person of _______

Answer 35

Good character

Question 36

Excluding the tendency rule from s 110(2)-(3) means that at the very least, tendency evidence can be used to n_______ good character evidence

Answer 36

neutralise

Question 37

Good character evidence is not merely evidence as to credit. It is evidence that could rationally affect (directly or indirectly) the assessment of the probability that the accused c_________________

Answer 37

committed the offences charged

Question 38

Good character - pros cannot submit that child sex offences cut both ways - that people might use charitable work in order to _______

Answer 38

access vulnerable young children for the purpose of sexual offending

Question 39

Good character - pros can XXN a character witness to suggest that the accused might have acted in a certain way when the witness was not ________

Answer 39

present

Question 40

In Saw Wah v The Queen [2014] VSCA 7, the CoA endorsed the common law approach (at footnote 20) that bad character evidence adduced to rebut good character evidence may not be used to reason that the accused was ______________

Answer 40

more likely to have committed the offence because of his bad character

Question 41

Good character - leave to XXN the accused re good character evidence will only be granted if:
(1) the accused i______ and d______ adduced evidence of his character.
It is for ___(who)___to determine whether good character evidence has been raised.

Answer 41

(1) intentionally and deliberately
(2) the trial judge

Question 42

If leave granted to the pros to adduce bad character evidence, the court still retains a __________ to exclude.
E.g., low probative value outweighed by highly prejudicial nature of the evidence/ where accused denies the allegations

Answer 42

discretion

Question 43

In Omot v R, the accused called good character evidence to show he had no priors for sex offence. Pros was permitted to call evidence of accused’s convictions for violent offences in rebuttal because the allegations involved violent sexual assaults and without the rebuttal evidence, the character evidence would give a f_____ i_____ of the accused

Answer 43

false impression